Third Parties Can Have Child Custody Rights Too In Pennsylvania

In Pennsylvania, a parent of a minor child may file an action for physical and/or legal custody of the child.  In certain circumstances, this right is also extended to grandparents and third parties who stand in loco parentis to the child.  Therefore, though it is presumed the parent has a right to custody, it may be forfeited if, by convincing evidence, the best interest of the child is served by awarding custody to a third party.

A person who stands in loco parentis has created a parent-like relationship to the child sufficient to warrant providing that individual the right to seek continued contact with the child.  This status can be conferred upon any third party, including, but not limited to, current or ex-spouses or partners, friends, siblings, and distant relatives.  The Pennsylvania Supreme Court in the case of T.B. v. L.R.M. provided a succinct definition of how a third party may establish a parent-like relationship:

[I]n loco parentis’ refers to a person who puts oneself in the situation of a lawful parent by assuming the obligations incident to the parental relationship without going through the formality of a legal adoption.  The status of in loco parentis embodies two ideas: first, the assumption of a parental status, and, second, the discharge of parental duties.  The rights and liabilities arising out of an in loco parentis relationship are, as the words imply, exactly the same as between parent and child.

567 Pa. 222 (2001). 

However, because Pennsylvania seeks to protect families from the intrusion of third parties, this status cannot be conferred onto a third party in defiance of the parents’ wishes and the parent/child relationship.  In other words, the natural parent must first consent to, or fail to object to, the creation of a parent/child relationship for the third party to serve as a parent-like role recognized by the court.  But once a parent has explicitly or implicitly consented to the creation of the parent/child relationship, then such parent’s subjective thought process, such as doubts as to the third party’s commitment to being a parent or intention to raise the child as a single parent, are all irrelevant to the question of whether the third party stands in loco parentis.

This has some serious implications for parents given the financial struggles and complex relationships experienced today.  Prior to moving in with others or placing the child in another’s care, parents should consider whether doing so will confer the status of in loco parentis to a third-party.  Parents may also make the mistake of believing that since both natural parents have active involvement in their child’s life, a third party cannot create a parent-like role.  This is not the case in Pennsylvania, where the courts have ruled third parties may acquire the status of in loco parentis even where both natural parents serve active roles in the child’s life.

This becomes even more complicated in the case of grandparents.  The courts have made distinctions between grandparents who stand in loco parentis and grandparents who serve as caretakers assisting their child in the parenting of their grandchild.  This has arguably increased the burden upon which grandparents seeking custody of their grandchild must prove the establishment of a parent-like role with their child’s express or implied consent.  For those grandparents who are unable to prove they stand in loco parentis, Pennsylvania has enacted specific provisions to provide them with alternative means to seek custody.  To pursue any form of physical or legal custody, grandparents who do not stand in loco parents must prove (1) they assumed or are willing to assume responsibility for the grandchild; and (2) any of the following conditions are met: (a) the grandchild is declared to be a dependent in a juvenile proceeding; (b) the grandchild is at risk due to parental abuse, neglect, drug or alcohol use, or incapacity; or (c) the grandchild has lived with the grandparents for at least the past 12 consecutive months and was removed from the home by the parents.

Grandparents who do not meet the elements for standing to sue for any form of physical or legal may still have the means to insert themselves into a custody dispute if they meet the elements for standing to sue for partial custody or visitation rights.  This standing is further extended to great-grandparents who do not stand in loco parentis to the child.  Standing to sue for partial custody or visitation rights is granted in the following circumstances: (1) to the parents or grandparents of a deceased parent of the child; (2) where the natural parents of the child have commenced a custody proceeding and do not agree whether the grandparents or great-grandparents should have custody where such grandparents or great-grandparents have a relationship with the child; or (3) the grandchild has lived with the grandparents for at least the past 12 consecutive months and was removed from the home by the parents.

These custodial rights granted to grandparents and great-grandparents might cause some parents to worry.  The good news is Pennsylvania is disinterested in violating parents’ constitutional rights to have a fundamental liberty interest in raising their children as they see fit.  The courts will not grant custody or visitation rights to grandparents or great-grandparents when both parents have agreed the grandparents or great-grandparents should not have any form of custody.

To understand the complexities around modern child custody disputes and the rights conferred to others in the best interest of the child, it makes sense to consult with legal counsel.  Whether you are a parent, grandparent, stepparent, or distant relative, you want to understand your rights in child custody disputes.

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About Family Law Focus
The Family Law Focus blog provides highlights, updates and insights on complex family disputes including divorce, division of property, and alimony; child and spousal support; child custody; domestic violence; pre- and post-nuptial agreements; name changes; and adoption or termination of parental rights.
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The Editor

Attorney Jennifer A. Brandt, chair of Cozen O'Connor's Family Law practice, has represented a wide variety of clients in hundreds of family law cases in Pennsylvania and New Jersey. Jennifer is a regular legal commentator on national and local television outlets such as CNN, Fox New Network, HLN, MSNBC, Fox29, ABC News, NBC and CBS and frequently writes and contributes to articles in numerous publications, including the Huffington Post, Fox Business.com, The PhiIly Post, Avvo.com, Allparenting.com, The Philadelphia Inquirer, The Philadelphia Business Journal, the National Law Journal, and Main Line Today magazine.
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